April is the cruellest month according to T.S. Eliot†, but it was really just busy for my practice and the courts. Here’s part one of our update on important decisions in the ADA and FHA world. We expect to be caught up after a long weekend of blogging and a couple of additional installments. More

It seems that CUNA, the Credit Union National Association has been slaying the dragon of serial website accessibility litigation.* In fact, the filing of a CUNA brief recently caused the plaintiff to just give up, dismissing the case voluntarily rather than face another unfavorable decision.** Looking at why CUNA has succeeded when the history of website litigation is mostly a story of defense failures points to an important rejection of standing based on dignitary harm, a rejection that may give defendants in non-credit union cases a useful argument of their own. More

It looks like six more weeks of winter based on the reaction of Punxsutawney Phil to the long shadow he casts over weather forecasting. The last week of ADA decisions seems to confirm that it will remain chilly for businesses as well.

Website Accessibility*

If Punxsutawney Phil had seen Robles v. Yum! Brands, Inc., 2018 WL 566781 (C.D. Cal. Jan. 24, 2018) when he popped out of his hole on Groundhog Day he probably would have just given up and stayed inside for the rest of the year. Robles is another web accessibility case in which the district court simultaneously refuses to say just what an accessible website is and requires the defendant to build one. In other words, no summary judgment is possible and the defendant faces an expensive legal battle after which it may be ordered to do something impossible or, worse still, ordered to do something so ill-defined that it will lead to an endless argument about compliance. We discussed this in more detail in our earlier blog “What is an ADA accessible website? Well, it’s complicated.” More

What does it mean for a website to be “accessible?” The standard answer for several years, now embodied in the implementing regulations for Section 508 of the Rehabilitation Act, is that accessible means “conforming” to WCAG 2.0 success level AA. A recent decision from the Eastern District of New York, Andrews v. Blick Art Materials, LLC, 2017 WL 6542466 (E.D.N.Y. Dec. 21, 2017), has a good discussion of why this should be the case, at least with respect to the visually impaired.* However, the focus in Andrews v. Blick Art was whether the terms of a settlement were appropriate, not whether WCAG 2.0 success level AA is what the courts should order.

In the one case that has gone to trial, Gil v. Winn-Dixie Stores, Inc., the court ordered WCAG 2.0 compliance after finding that the defendant’s website was not accessible. The order is interesting because it orders in general terms that the website be accessible and then specifically that it comply with WCAG 2.0, but never says that WCAG 2.0 compliance is equivalent to accessibility and never says what success level is required. This is one of many issues raised by the defendant on appeal, for it argues that because WCAG 2.0 is based on general principles rather than specific mandates the defendant can never be sure whether it has complied.**

This brings us to Eason v. New York State Bd. of Elections, 2017 WL 6514837 (S.D.N.Y. Dec. 20, 2017). Eason is a Title II / Rehabilitation Act case that bypasses the “does the ADA apply” question because Title II entities must make their programs accessible, meaning there is no real doubt that their websites should be accessible. That leaves more complicated questions about just what accessibility means.

The Court’s first observation is that the plaintiff and defendant have very different theories about how to approach the case in the first place. The plaintiff seems to have wanted a broad finding that the website was not accessible with an order for the implementation of policies and procedures to make and keep it accessible. The defendant, on the other hand, had fixed the specific problems listed in the complaint and wanted the case dismissed on the theory that the case concerned only those problems and was therefore moot. The Court rejected both approaches.

It rejected the defense approach because, it found, the complaint was sufficiently open to include accessibility problems other than those listed in it. It also analogized websites to physical facilities, noting that inaccessibility at one place might keep a disabled person from even getting to another place to discover what was inaccessible there.

The Court did not reject the plaintiff’s theory of relief, but did reject the report of the plaintiff’s expert, which it found had a number of problems, the most important of which was a failure to focus on “meaningful access” as opposed to “equal access.” Equal access is, of course, impossible. A blind person cannot under any circumstances equally see an image. What is required, according to the Court, is meaningful or functional access to the services offered on the website.

This focus on meaningful access required a trial according. The opinion says the Court wants to see how screenreader software works on the website itself to determine whether there is meaningful access. That, it found, depends on things like how long it takes to access a service for a vision impaired person as compared to a person with ordinary vision. It isn’t hard to imagine any number of difficult questions raised by the “meaningful access” standard. If an image is important, how much description is required for a person using a screen reader to have meaningful access. Is “boy and dog” enough, or does it need to specify “boy and dog playing with stick” or “boy and dog playing with stick in the park?” Those are the kinds of questions the Court seems to believe could only be answered by looking at the entire process by which an individual with a screen reader uses a website. This is, by the way, something that good website accessibility consultants agree is true. No algorithmic or software analysis is sufficient. If you want to know whether a website is accessible, you have to test it with humans.

Notably absent is any mention of WCAG 2.0. The Court seems to have adopted an approach that asks the plaintiff to explain where the problems are, the Court looks at the problems to see if it agrees, and then the Court orders that problem fixed as opposed to accepting that problems exist and then ordering WCAG 2.0 compliance as the solution. From a legal perspective this makes perfect sense. The Court can only decide the dispute it has before it, and that dispute involves a particular blind individual who had or might have specific problems with a specific website. Requiring that the website meet some general level of accessibility for the good of all disabled persons is generally beyond the court’s authority in individual private lawsuits.

Although Andrews v. Blick touches on the question of whether WCAG 2.0 is an appropriate accessibility standard, none of these cases delves very far in to the difficult questions raised by the Winn-Dixie appeal. The first of these is how to bridge the gap between general principles and the hard reality of software code and hardware choices. One of the disputes in another recent case, Del-Orden v. Bonobos, Inc., 2017 WL 6547902 (S.D.N.Y. Dec. 20, 2017) concerned the ability of low-vision users to see an on-screen button while using the screen zoom function. On screens larger than 23.5 inches it was visible. On smaller screens it was not. Is WCAG 2.0 compliance required for every possible screen size or resolution, or can a business ignore outdated displays and standards? Similar problems exist with respect to the differing capabilities of screen reader software and mobile devices. WCAG 2.0 is supposed to be device independent, but that comes at the cost of not being precise, and a lack of precision is an invitation to litigation.

The ADA standards for access to physical places are “objective,” “precise” and “thorough.”† A business that satisfies them can be certain that its physical facility complies with the requirements of the ADA. WCAG 2.0, for all its commentary and technical resources, ultimately concerns the subjective experience of a particular user, with particular software and hardware, interacting with a website that, unlike most physical businesses, constantly changes. WCAG 2.0 Success Level AA is the best bet for any business website, but cases like Winn-Dixie and Eason are raising questions about what “accessible” means that courts may find difficult to answer when it comes to websites.‡

* This decision is worth reading by any person who wants to understand how websites can be inaccessible, for it includes a detailed description of the problems in the defendants’ website from a functional perspective.

** The appeal is Case No. 17-13467 in the 11th Federal Circuit Court of Appeals. On January 13 the Court of Appeals found the case required oral argument, but it has not yet set a date.

‡ In this regard businesses should note that WCAG 2.0 will be updated this spring to WCAG 2.1, which includes a number of new Success Level AA criteria, including one that would probably fix the zoom problem identified in Del-Orden v. Bonobos. Like any change in accessibility criteria this one begs the question, “if the change is needed, does that mean the earlier standard did not insure accessibility?” Every accessibility technology can be improved and no accessibility standard guarantees complete access for all. When technology is rapidly evolving every effort to find the right compromise is bound to be temporary. Rapid change is not something that Congress, the Courts, or regulators are very good at.

Access Now, Inc. v. Otter Products, LLC, 2017 WL 6003051 (D. Mass. Dec. 4, 2017) points out one of the many problems created by the thoughtless application of the ADA to websites – the potential for forum shopping. Massachusetts is one of the most favorable venues for ADA website cases because its federal courts have held that all websites are subject to the ADA regardless of their connection to a physical place of business. In Otter Products the plaintiff lived in Massachusetts and had no difficulty persuading the Court that it could exercise jurisdiction over the defendant based on product sales over the internet to Massachusetts residents. The possibility of being sued in almost any state comes with doing business nationwide. The problem with ADA lawsuits is that while we have a single federal law there is no single federal standard for determining which websites must be accessible or what accessibility means. This means plaintiff’s law firms will be choosing where to file suit based on an agenda that may bear little or no relationship either to real accessibility or what Congress intended. Businesses with nationwide sales may as well accept that every website must be accessible (because that is what the most liberal courts have held) and that website accessibility will mean whatever they lack (because that is the allegation needed to get past a motion to dismiss). More